Health Care Providers: Create a Culture of Compliance

Recent Wisconsin Court of Appeals Decision Highlights Importance of Immediately Reporting and Investigating Patient Care Concerns.

The Wisconsin Court of Appeals recently released a decision in Ashker, D.O. v. Aurora Medical Group, Inc. et al., Appeal No. 2012 AP 2245 (Nov. 20, 2013). Dr. Ashker was terminated by Aurora Medical Group when it learned he tried to cover up medical malpractice by attempting to delete medical records. The legal issues in the case dealt with whether Aurora could actually terminate Dr. Ashker for the cover-up under his employment agreement. The background facts, however, illustrate the importance for health care facilities and administrators to establish a culture and procedure to immediately report, investigate, and handle patient care concerns.

Aurora employed Dr. Ashker as a radiologist. Shortly after he began working for Aurora, Dr. Ashker misdiagnosed a patient by failing to spot a tumor on an x-ray image. Another physician caught the tumor and informed Dr. Ashker of the mistake. Apparently Dr. Ashker then inquired with several other Aurora employees about deleting images from the patient’s medical file. One employee claimed Dr. Ashker offered money to make the deletion.

A radiologic technician involved with the misdiagnosed patient reported Dr. Ashker’s conduct to Aurora’s administration. Aurora launched an investigation, where it interviewed or obtained statements from eight separate providers about the allegations. Aurora also checked into the ability of providers to delete records from a patient’s electronic medical record. After speaking to the involved parties and confirming records could not be deleted, Aurora presented the case to its management committee. The management committee reviewed the case and decided to discharge Dr. Ashker. Aurora provided him a letter of termination, informing him that his employment was terminated for cause because his conduct did “not align with [Aurora’s] values of accountability, teamwork and respect.”

Dr. Ashker later sued Aurora for breach of his employment contract for failing to abide by the specific termination provisions. The circuit court found that there was no provision in the employment contract which allowed Aurora to terminate Dr. Ashker for his conduct, no matter how egregious, without paying him for a 90-day severance period. The court of appeals affirmed the decision, writing “if Aurora had wanted to be able to immediately terminate Ashker under the circumstances presented in this case, it could have negotiated such a term into the employment agreement. Health care facilities and administrators can take away three points from Aurora’s actions and this case:

• Create a culture of reporting patient care concerns. Most providers are proud of their care, and rightfully so. Even more providers live with the very real and omnipresent fear of a malpractice lawsuit and insurance premium increases. Health care facilities and administrators have to create a culture of reporting and compliance which encourages providers to report patient care concerns. A culture of compliance, where providers can feel safe reporting patient care concerns to risk management or administration, begins with the “tone at the top.”

• Investigate patient care concerns early and thoroughly. Once administration receives a patient care concern, it should be investigated early and thoroughly. In this example, Aurora immediately investigated reports that Dr. Ashker sought to delete medical records but also investigated whether a provider could delete adverse medical records. This early and thorough investigation may have helped Aurora avoid a malpractice lawsuit from the misdiagnosed patient as well as future concerns associated with providers deleting records.

• Do not limit your ability to address patient care concerns. In this example, Aurora contracted away its ability to terminate Dr. Ashker’s employment for what appeared to be egregious conduct. Health care facilities and administrators should consider adding language into employment agreements allowing facilities to put providers on immediate leave while investigating patient care concerns and allowing for immediate termination of employment upon conclusion of investigating the concern. The last thing a health care facility needs is an employment agreement to stand in the way of taking corrective action after a conclusive investigation.

A culture of reporting patient care concerns starts at the top with health care facilities and administrators encouraging employees and providers to report patient care concerns immediately. Early reports allow administrators to investigate early and stem patient care concerns before they turn into malpractice lawsuits.

Tyler Wilkinson is an attorney with Axley Brynelson, LLP and a member of the firm’s health care team. Mr. Wilkinson practices primarily in medical malpractice defense. He frequently assists health care facilities and administrators in pre-suit investigations and audits.

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